Lake Norconian Club Foundation v. Department of Corrections & Rehabilitation, 39 Cal. App. 5th 1044
The California Department of Corrections (Department) operates a prison next to the historic Lake Norconian Club, a former resort and hotel constructed in the 1920’s. The Department used the building as a drug rehabilitation facility, and later, as prison administrative offices. In 2012, the legislature decided to close the prison, and the Department prepared an EIR for the planned closure. The EIR stated that the Department could not allocate necessary funds to maintain the building due to the Department’s other maintenance priorities. The legislature later changed its mind, allowing the Department to continue operating the prison, however, the Department decided that it would not maintain the former hotel.
Beginning in 2006, Lake Norconian Club Foundation (Petitioners) repeatedly advocated for the Department to maintain the hotel. Petitioners sued in 2014, alleging that the Department’s willful and ongoing failure to maintain the hotel was a continuous discretionary action with significant environmental impacts, and therefore, was a project under CEQA for which no environmental review was conducted. The trial court agreed with Petitioners and found the Department’s actions and omissions constituted a project under CEQA, but nevertheless entered judgment in favor of the Department. The trial court concluded that the statute of limitation began to run when the 2013 EIR was certified, rendering the 2014 petition untimely.
Petitioners appealed the judgment, and the Department cross-appealed, arguing that its inaction was not a project under CEQA.
No prior California case has addressed whether an agency’s failure to act could be considered a project. In federal NEPA cases, courts have often held that inaction does not constitute ‘action’ (the NEPA term analogous to a ‘project’ under CEQA). NEPA guidelines state that inaction may constitute action where the omission would be judicially reviewable under the APA, and case law has held that inaction in the face of a mandatory duty to act creates an omission.
The Court noted that CEQA contains no such guideline and Petitioners failed to identify a statute which created a duty for the Department to maintain the hotel. The Court stated that CEQA defines “project” by describing activities which constitute projects—failure to act is not a project, even if the inactivity would lead to environmental consequences. The Court noted the practical unworkability of deeming inactivity a project, particularly when attempting to determine when the ‘inactivity project’ commences or receives approval for purposes of CEQA’s statute of limitations.
Absent any statutory duty, the Court held that the Department’s failure to act could not be deemed a project, nor challenged for noncompliance with CEQA; and that inaction is not a project under CEQA, at least where there is no affirmative duty to act.